CIBC Mortgages Inc. v. LeBlanc,

• Jurisdiction: New Brunswick
• Judge: Morrison, J.
• Neutral Citation: 2012 NBQB 129
• Citation: (2012), 386 N.B.R.(2d) 379 (TD),2012 NBQB 129,343 NBR (2d) 390,[2009] NBJ No 95 (QL),386 N.B.R.(2d) 379,(2012), 386 NBR(2d) 379 (TD),[2009] N.B.J. No 95 (QL),386 NBR(2d) 379
• Date: 07 June 2011
• Court: Court of Queen's Bench of New Brunswick (Canada)

CIBC Mortgages v. LeBlanc (2012), 386 N.B.R.(2d) 379 (TD);

    386 R.N.-B.(2e) 379; 999 A.P.R. 379

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2012] N.B.R.(2d) TBEd. AP.027

Renvoi temp.: [2012] N.B.R.(2d) TBEd. AP.027

CIBC Mortgages Inc. (plaintiff) v. Kathy Dawn (McElhinney) LeBlanc (defendant)

(W/SC/180/10; 2012 NBQB 129; 2012 NBBR 129)

Indexed As: CIBC Mortgages Inc. v. LeBlanc

Répertorié: CIBC Mortgages Inc. v. LeBlanc

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

Morrison, J.

April 20, 2012.

Summary:

Résumé:

The mortgagee sued the defendant for a mortgage deficiency.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action.

Mortgages - Topic 5425

Mortgage actions - Duties of mortgagee - Re sale of mortgagor's property - The mortgagee lent $97,375 in respect of the home of the defendant and her former husband - After the couple's separation, the husband remained in the home - The husband went bankrupt - The mortgage went into default - The mortgagee eventually had the home sold at a private sale - The sale fetched $78,000, the appraised market value of the home at the time of the sale - The mortgagee sued only the defendant for the deficiency - An issue arose as to whether the mortgagee discharged its obligation to obtain a price which reflected the property's market value - The New Brunswick Court of Queen's Bench, Trial Division, held that it did where the decrease in value resulted from damage and neglect occurring during the husband's occupation of the home - See paragraphs 13 and 14.

Practice - Topic 353

Parties - Non-joinder of parties - General - Effect of - A Marital Property Order provided that the defendant would convey her interest in the marital home to the husband and that the husband would assume the mortgage - No document releasing the defendant from mortgage liability was obtained from the mortgagee - Nor was the mortgagee a party to the matrimonial proceedings - The husband went bankrupt - The mortgage went into default - The mortgagee had the home sold - A deficiency resulted - The mortgagee invoked the covenant to pay and sued only the defendant - The New Brunswick Court of Queen's Bench, Trial Division, allowed the action where the court could not determine the liability of persons not before it - The Marital Property Order had no operation vis-à-vis the mortgagee - See paragraphs 9 to 11.

Hypothèques - Cote 5425

Actions hypothécaires - Obligations du créancier hypothécaire - Vente des biens du débiteur hypothécaire - [Voir Mortgages - Topic 5425 ].

Procédure - Cote 353

Parties - Jonction des parties - Généralités - Effet du défaut de joindre - [Voir Practice - Topic 353 ].

Cases Noticed:

Williams et al. v. Saint John (City), New Brunswick and Chubb Industries Ltd. (1985), 66 N.B.R.(2d) 10; 169 A.P.R. 10 (C.A.), refd to. [para. 10].

Bank of Montreal v. MacCallum (1994), 151 N.B.R.(2d) 138; 387 A.P.R. 138 (Q.B.), refd to. [para. 11].

CIBC Mortgages Inc. v. Johnson (2008), 328 N.B.R.(2d) 143; 841 A.P.R. 143 (T.D.), consd. [para. 16].

Counsel:

Avocats:

Peter A. Brewer as agent, for Timothy M. Hopkins, on behalf of CIBC Mortgages Inc.;

Kathy (McElhinney) LeBlanc, per se.

This action was heard on March 8 and June 7, 2011, by Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following decision on April 20, 2012.